The Department of Social Development informed the understandably frustrated Portfolio Committee on Social Development that it will not meet the looming November deadline. So what happens next for the vulnerable children caught up in this decade long saga, and can foster care finally be “fixed”?

It was 2011 when the High Court first ordered the Department of Social Development (DSD) to develop a comprehensive legal solution and the mechanisms to fix foster care. But, after eight years and two court extensions of the 2011 order, no legislative solution has been forthcoming. It was therefore not surprising that the Portfolio Committee on Social Development summoned the department to Parliament in September to brief the committee urgently about how it was planning to prevent tens of thousands of children being left without a grant when the court-imposed moratorium on foster care orders lapsing ends on 28 November.

It was also not surprising that the Portfolio Committee was unconvinced by the department’s plan to manually renew the huge number of lapsing orders, this despite an undertaking from both national and provincial department heads that the goal was achievable. The chair ordered them to bring proof of their claims. What followed was weeks of presentations showing progress, detailed plans, summaries of resources deployed and diminishing numbers (along with a list of resource constraints and other snags and the worrying promise that “all of our resources are focusing on foster care”).

But the committee and civil society remained sceptical, and rightly so. At the 23 October briefing, after seven provinces presented their progress, with five admitting they would not make the deadline, sanity somehow prevailed. The Acting Director-General for the DSD, Mxolisi Toni, had to finally concede that the department would not meet the November deadline.

It prompted a scathing barrage of criticism from committee members across the ANC, DA, IFP and EFF. They accused the department of:

• “Wasting our time” because it had not accepted the committee’s recommendation that it “wouldn’t meet the deadline and needed to make contingency plans”;
• A “lack of urgency” and approaching the foster care problem as a “box ticking exercise”;
• “Wasting resources” and “neglecting abuse cases, gender based violence and the elderly” because it was only focusing on foster care; of operating in a “perpetual mode of crisis”; and
• Possibly most damningly, of forgetting that the numbers they were reporting were not court cases but children, and therefore of “not caring about suffering children”.

It fell to the chairperson, Mondli Gungubele, to state: “The fact that we are found wanting is no longer in dispute,” and to address the root cause of the crisis: “From the beginning, the court said to you that it will be resolved through legislation. The department spent more than 90% of its time aimlessly.” He went on to use a target practice analogy: “We shoot and then we aim. If you shoot without aiming, you cannot hit the target.

“The department should feel ashamed” he continued, “you have wasted a lot of money in the process and… your mandate suffers if you are only taking care of foster care, what about the rest of your services?”

The chair then recommended some practical solutions, setting a five-day deadline for the department to develop a legislative process plan. He raised concerns about the Children’s Amendment Bill because estimates are “that the CAB will take more than a year to finalise because of the number of clauses” but reminded the department that it was not the only piece of legislation available to fix foster care: “The Deputy Speaker says Social Assistance Amendment Bill is due for revival.” He confirmed that the Social Assistance Amendment Bill will take the “shortest of all time to legislate” and that “on its own” it will make significant strides towards turning around the “biggest portion of the problem”.

Gungubele is correct in his assessment that to fix foster care, another law needs to be amended in addition to the Children’s Amendment Bill. During the presentation, the Acting DG indicated that the department had made some mistakes with the Children’s Amendment Bill. He didn’t elaborate on whether they were process errors or substantive errors, although both have been highlighted by civil society since the Bill was first sent to Cabinet at the beginning of 2019. Either way, he did indicate that the Bill was not ready for tabling: “When we submitted the Amendment Bill to Cabinet and it was approved, we got so excited, [and] as a result left [out] some of the details that we were supposed to attend to. We are now negotiating with state law advisers and department of constitutional development. We are realising that we might have to take the Bill back to Cabinet.”

By contrast, the Social Assistance Amendment Bill was properly tabled in 2018, and although it had lapsed it was ready for reviving, a step which occurred on the 29 October 2019. According to the Acting DG, the Social Assistance Amendment Bill will “empower the Minister of Social Development to augment the value of the Child Support Grant so that the relatives caring for children whose parents have died can obtain a social grant without them having to go through the Foster Care process. This is because they will be raising children that are not their own. As such, they are given a grant slightly higher than a child support grant and slightly lower than a foster care grant. The CSG Top-Up grant will not lapse every two years and will not require a children’s court order.”

The strength of the Bill is therefore in its ability to dramatically minimise the number of children in the foster care system while ensuring that families caring for orphans get the financial support they need to adequately provide for them.

But, while the department’s realisation that it cannot manually renew all soon-to-lapse foster care orders and its revival of the Social Assistance Amendment Bill is positive, it is not close to implementation yet, and the court deadline is imminent. So what will happen to the children whose foster care orders have not been renewed come 28 November? The answer depends on what the DSD does next.

It has already indicated to the Portfolio Committee that its first and most urgent task will be to approach the High Court to obtain another two-year extension (and as the chair astutely added, to ensure that the extension is “supported by applicant”, in other words the Centre for Child Law (CCL)). Even this hasn’t gone smoothly though. Although the department met with the Centre for Child Law on 7 November, the CCL has not agreed that it won’t oppose the department’s request for an extension. Instead it has requested a letter explaining why, nine years after the first court order requiring the department to produce a comprehensive legal solution, they still do not have one. CCL will probably only support the department’s application for an extension if it has met the condition of a comprehensive legal solution or can show a real commitment and plan to do so. But the department missed the deadline for submitting this letter last week, and may also miss the deadline for filing court papers requesting an extension.

What the department has done is to write to the Deputy President requesting help with getting the Children’s Amendment Bill certified and “processed and finalised” before the expiry of the court order. It’s understandable. The Minister herself has expressed dismay at the mammoth challenge of trying to unscramble the mess left by her predecessors, and continue with everyday operations. So, DSD surely wants to avoid adding a court order declaring that she acted unconstitutionally to her woes (the consequence of the department once again missing the deadline to introduce a comprehensive legal solution for foster care).

But it’s also a depressingly negative move on the department’s part, given that it still cannot pinpoint how the Children’s Amendment Bill will solve the foster care crisis, and given civil society’s comprehensive criticism of the Bill’s endemic flaws. Most ironic is that the Centre for Child Law is probably far more likely to support the further suspension of the declaration of unconstitutionality against the Minister if the department sends the Bill back for reworking, rather than tabling a flawed Bill that is not fit for purpose in the interest of avoiding the judgment.

Either way, this will go down to the wire. And, no matter what happens next, the department will have a huge challenge changing the perception amongst civil society and parliamentarians alike that it has forgotten about the most important constituent in this battle, the children themselves. DM